The evolution of intermediate facts and the pursuit of Justice


Pursuing justice is an intricate and often convoluted process, defined by the rigorous application of the law and the never-ending search for truth. At the heart of this journey lies the philosophical problem of inferring guilt, a challenge that has long intrigued philosophers, jurists and legal practitioners alike. In modern legal systems, this philosophical issue manifests in how evidence is presented and evaluated in criminal cases. This paper will focus on the implication of the intermediate fact concept and how it has been influenced by, in turn, the pursuit of justice in Australia.

Philosophical Dispute

This philosophical dispute concerning facts from which “the inference can be drawn has troubled philosophers since David Hume”[1]. He further explained, “There are two possible arguments to support this inference, ‘demonstrative’ and ‘probable’, but neither will perfectly serve as the answer. A demonstrative argument produces the wrong conclusion, and a probable argument would be circular.”[2]

The problem of induction also has significant implications in the field of law, particularly in the study and application of evidence in criminal cases. The standard for evidence in criminal cases is “beyond a reasonable doubt”, which involves probabilistic or demonstrative judgments. It requires an inductive leap from the specific evidence presented to a conclusion on guilty.

Until the philosophical dilemma is resolved, the evidence required in circumstantial cases can be justified pragmatically rather than strictly logical reasoning.

The Nuanced relationship of facts

In the Shepherd case, McHugh J emphasises the nuanced relationship between quantity and quality of facts in determining guilt beyond a reasonable doubt. He said: “Inference of guilt beyond reasonable doubt may not be able to be drawn unless each fact relied on to found the inference is established beyond reasonable doubt. This is likely to be the case where the incrimination facts relied on to establish the inference are few in number. But the more facts relied on to found the inference of guilt, the less likely it is that each or any fact will have to be proved beyond a reasonable doubt to establish guilt beyond a reasonable doubt.”[3]

McHugh J also allowed the possibility to infer guilt beyond reasonable doubt even if not every fact is proven to that stringent level. He observed: “ The cogency of inference of guilt is derived from the cumulative weight of circumstances, not the quality of each circumstance and even when guilt beyond reasonable doubt cannot be inferred unless certain facts can be proved, it may still be open to infer guilt beyond a reasonable doubt even though each fact is not proved to that standard .”[4]

Facts are still treated equally here. “He seems to discuss individual facts, not intermediate facts, as indispensable links. This is consistent with what was said by Deane J in Chamberlain at pp.626-627.”[5]

The introduction of intermediate facts 

“The idea of intermediate facts was invented in the Chamberlian case by Mchugh J. He relied upon R v Van Beelen and Thomas V R as authority for the propositions that the primary facts must be proved beyond a reasonable doubt.”[6]

The opinions of the majority in Sheperd held that the jury’s final verdict relies on making certain preliminary factual determinations called intermediate facts. These facts serve as essential and indispensable links in a chain of reasoning towards an inference of guilt. “The position was restated by Sully J in Miniti that circumstantial evidence in criminal cases has to be dealt with in the shadow of two contrasted forensic metaphors. One is the link in a chain. The other is strands in a cable.”[7]

In practice, “a circumstantial Crown case which is properly to be treated as a link in a chain will require jury directions about the intermediate facts while circumstantial Crown case which is properly to be treated as stands in the case will not.”[8] However, this different treat of facts would also have the effect of “to shackle juries’ minds and force them into a pattern and method of thought which is likely to be foreign to the vast majority of them”.[9]

The impact on the burden of proof in criminal proceedings

Like the reason behind declines of circumstantial evidence in US Antitrust law, “the federal courts are making it difficult for private plaintiffs to bring price-fixing claiming.”[10] The concept of intermediate facts also appears to have been introduced for practical reasons, specifically to aid the prosecution.

In Chamberlain, the High Court observed that “each fact on which an inference is sought to be based must be proved beyond a reasonable doubt.”[11] The prosecution had to prove every admissible fact beyond reasonable doubt before the Shepherd case, a standard that often made securing a conviction much more challenging.  Naturally, if there is doubt about the basic facts from which an inference is drawn, the inference becomes questionable. If the foundation is shaky, anything built upon it will likely be unstable. In criminal cases, the prosecution must prove the defendant’s guilt beyond reasonable doubt. If there is doubt about the underlying facts, it becomes nearly impossible to meet this standard.

The introduction of “intermediate fact” in Sheperd represents a departure from the stance taken in the Chamberlain case, effectively reducing the burden of proof required from the prosecutor.

The influence of shifting tides of public opinion

Intermediate facts were also introduced to suit public opinion focusing on strict law enforcement. “Recent aggregate-level research on United States Supreme Court suggests that shifting tides of public opinion can have important effects on Supreme Court decisions. As predicted by social psychological theories, the effects of public opinion suggest important refinements in the standard attitudinal model of judicial decision making.”[12] “As with other aspects of the administration of justice, the tide continues to run against the person on trial.”[13] “A majority of people (59% -80%) say that sentences are too lenient”[14] from a NSW parliamentary research service report. Public sentiment demanded a method to secure the conviction of criminals. The intermediate facts concept is the answer from the court to this request.

If the proposition that the concept of intermediate facts is introduced because the change of public opinion from avoiding the conviction of innocent is desirable towards flexibility left to the discretion of jurors to facilitate the conviction is accurate, we would observe that the concept of immediate fact will gradually fade away within the trends against the person on trial to aid the prosecution further.

As a matter of what is happening, the difference in the treatment of intermediate and normal facts is on the way out. For example, “Spigelman CJ in Davidson sees it as a spent force.”[15] He observed that “the obligation to prove guilt beyond reasonable doubt will often be adequate, in a particular case, for a matter which jury may reasonably regard as an indispensable intermediate fact.”[16] “Also in Serratore case, even though Newman J gave a ‘link in a chain’ direction by mistake, the jury ignored the direction and convicted anyway.”[17]

A compromise of unwavering judges to defend the rule of law

Why does a difference in treatment of fact still persist?  The reason may be that some judges remain steadfast in adhering to legal principles and the spirit of the rule of law, even faced with public opinion pressures. For example, Sir William Deane. “He fiercely asserted the principle of open justice and the fairness of judicial proceedings.”[18] The Dietrich case demonstrated his commitment to enforcing the rights of “the poor…the weak…and the bad”[19] His decisions “displayed a notable commitment to social justice and a willingness to extend the constitutional protections of human rights. The tendencies were particularly prominent during Mason Court years (1987 -1995).”[20]

The intermediate fact solution is a middle ground being reached between members of judges who are unyielding in their principle and judges who may be more flexible, understanding the public needs to facilitate the conviction.

This solution is an attempt to find a balanced and fair way to uphold the legal rights of accused individuals, considering both the strict interpretation of the law and the calling of public opinion that a more moderate judge might consider. It embodies a compromise that aims to serve justice while understanding and responding to public needs and concerns.


The philosophical challenge of inferring guilt has birthed complex legal notions like intermediate facts. This concept, though practically aiding prosecutors, represents a more profound struggle between legal principles and societal needs. The shifting interpretations of these principles reflect both the influence of public opinion and the steadfast commitment of a group of judges to uphold the rule of law. This compromise, seen in treating intermediate facts, is more than a legal technicality. It symbolises an evolving understanding of justice shaped by societal values. The handling of evidence and inference in legal reasoning, whether considered a link in a chain or strands in a cable, reveals law’s intricate, dynamic nature.



[1] Leah Henderson, ‘The Problem of Induction in Edward N Zalta and Uri Nodelman (eds), The Stanford Encyclopedia of Philosophy (Metaphysics Research Lab, Stanford University, Winter 2022, 2022) <;.

[2] Ibid.

[3] Shepherd v The Queen [1990] HCA 56, 12.

[4] Costanzo John, ‘The Indispensability Of Shepherd To The Flock’ (1997) 16(138) Australian Bar Review.

[5] Bark Ian, ‘Circumstantial Evidence in Criminal Cases.’ [2011] (winter) NSW Bar Association 37 <;.

[6] John (n 4).

[7] Ian (n 5) 38.

[8] Ibid.

[9] Pagani Marjorie, ‘Facts, Further Facts and Other Facts: The Chamberlain Direction Revisited’ (1992) 12(3) Queensland lawyer citing R v Stepherd(No 3) 39 A Crim R 266 274.

[10] Christopher R Leslie, ‘The Decline and Fall of Circumstantial Evidence in Antitrust Law’ (2019) 69(6) American University Law Review 1713, 1715.

[11] Marjorie (n 9).

[12] William Mishler and Reginald S Sheehan, ‘Public Opinion, the Attitudinal Model, and Supreme Court Decision Making: A Micro-Analytic Perspective’ (1996) 58(1) The Journal of Politics 169, 169 (‘Public Opinion, the Attitudinal Model, and Supreme Court Decision Making’).

[13] Ian (n 5) 39.

[14] Roth Lenny, Public Opinion on Sentencing: Recent Research in Australia (2014) 10.

[15] Ian (n 5) 39.

[16] Davidson v R (2009) 150 NSWCCA 19.

[17] Ian (n 5) 39.

[18] Heather Roberts, ‘A Mirror to the Man Reflecting on Justice William Deane: A Private Man in Public Office’ (2011) 32(1) Adelaide law review 17, 37 (‘A Mirror to the Man Reflecting on Justice William Deane’).

[19] Ibid 36.

[20] Ibid 17.